1. This is an appeal which arises out of a suit between a vendor and a purchaser of coal,and one which should have been disposed of at the trial both on the question of liability and on the question of damages. However, a reference was directed.
2. More than once this Bench has protested against a reference being directed in cases of this nature. I wish again to repeat the protest, and I do this in the language of the Court of Appeal in England when Lord Justice Bowen expressed his desire to protest against the melancholy spectacle which the case before him presented. He said ......'Cases ought only to be referred to other persons to assess the damages where the inquiry involved questions of detail winch it would be wasting the time of the Court to investigate.' The opinion so expressed by Lord Justice Bowen was shared by Lord Justice Cotton and Lord Justice Fry, the latter of whom said that ''he had more than once expressed his fears lest the practice of directing enquiries should lead to two trials when one was sufficient. Sending an action to a referee might be necessary in some cases, but as a general rule his Lordship objected to the splitting up of the trial into two enquiries - first, as to the right, and, secondly, as to the amount of damages. This case might have been entirely disposed of by the Judge': Wallis v. Sayers (1890) 6 T. L. R. 356. We share the opinion to which expression is given in Wallis v. Sayers (1890) 6 T. L. R. 356, and this case amply illustrates the undesirability of a needless reference. I have described the nature of the snit. It was commenced a long time back there was a decree establishing the right in 1913, and we are now in 1915 dealing with an appeal on exceptions to the Referee's report as to the quantum of damages. I trust that cases of this kind will not be referred to the Referee. It is not merely that this is an error of procedure, but whore the question is one between a seller and a purchaser and the point in dispute may be readiness and willingness to sell, it is obviously of prime importance to know how the market has gone with reference to the contract price. In this case the matter went before the Referee. It did not take a very direct course, and I am not clear that the real points were properly appreciated, but the result has been that the plaintiff has failed to prove the amount of damages in respect of this particular coal, Lodna rubble, unless he can rely on an allegation in the defendant's Statement of Fact. But that allegation was made provisionally. The plaintiff never insisted upon it before the Referee as being a correct statement of the market rate, and it is obvious from the course which the case took before the Referee, that both parties gave the go-by to that statement and endeavoured to establish by evidence before him what the market rate was The plaintiff has failed to prove that the market rate exceeded Rs. 1-12 annas. Therefore, I think Mr. Justice Chitty ought not to have interfered with the conclusion of the Referee.
3. This appeal is allowed, and the order of Mr. Justice Chitty is set aside with costs of this appeal and the exceptions before Mr. Justice Chitty.
4. Attorneys for the appellants: B. N. Basu & Co. Attorney for the respondents: Rajani Mohan Chatterjee.